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Care proceedings - application for prerogative, declaratory relief - refusal by Children's Court magistrate to allow the mother to supply material to an expert for report - practice note no 30 - whether magistrate's leave required - effect of s 105 Children and Young Persons (Care and Protection ) Act 1998.
A realistic possibility of restoration - First, a possibility is something less than a probability; that is, something that it is likely to happen. Secondly, a possibility is something that may or may not happen. That said, it must be something that is not impossible. The section requires, however, that the possibility be 'realistic' which requires that the possibility of restoration is real or practical….'sensible' and 'commonsensical'. Furthermore, the determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration.
Appeal from decision of District Court which allowed an appeal from a care and protection order made by the Children’s Court under s 71 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998. Application for relief in that nature of certiorari under s 69 of the Supreme Court Act 1970 - EVIDENCE - Burden of proof – Allegation that father had sexually abused five year old daughter – whether trial judge correctly applied standard of proof – application of s 140 (2)(c) of the Evidence Act 1995 – whether matter should be remitted to the District Court.
In the circumstances of this case the appropriate order for a refusal of contact is an order made pursuant to s 86(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 rather than an order pursuant to s 90A.
A paper by Robert Hosking, solicitor.
FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 (Cth) - Wards of Court - Supreme Court - Inherent jurisdiction to protect infants - Orders for Court’s consent to medical treatment of infants in lieu of parents’ consent - Whether order for wardship necessary. Decided – order for medical treatment made. No need for wardship order.
In the matter of Julia - SCM Mitchell
Application for assessment pursuant to section 54 (1) of the C & YP (C & P) Act 1998. Whether the Children’s Court can make an order for assessment in relation to parenting capacity if person does not give consent. Whether adverse inference can be drawn by Children’s Court if person does not consent to or participate in the assessment.
Ten-week-old child suffered severe injuries consistent with “Shaken Baby Syndrome”. Both parents denied culpability and supported each other in their individual denial of responsibility. Parents sought to introduce alternative medical explanations for injuries. Assessment concluded that only a medium risk of further injury existed if child returned to parents’ care. Briginshaw standard applied and permanency planning principles addressed. Child placed in kinship placement until 18 years with liberal contact to both parents.
In considering the proposal for long-term care for Earl and Tahneisha the question of the children’s possible Aboriginal heritage arose. The definition outlined in s 5 of the Act was considered and it was found that the children were not of Aboriginal heritage and that the placement principles in s 13 of the Act did not apply.
Child born with severe medical problems. No realistic possibility of restoration to either parent. Permanency planning principle addressed (s 83 (7)) despite the lack of identified permanent placement. Children’s Court decisions in Re: Rhett and Re: Ashley cited with approval.
Robert MacLachlan, Solicitor.
Samantha is a seventeen year old girl who suffers multiple disabilities including, in the majority psychiatric opinion, a mental illness. Samantha's parents disagreed with this opinion and presented contrary expert evidence. The Children’s Court considered that in all other respects the parents’ care of Samantha was beyond reproach. However, considering several authorities from the House of Lords, the SCM affirmed the role of the Children’s Court is to decide what is in the child’s best interests even if that means putting aside the considered opinions of otherwise reasonable and appropriate parents.'
The Children’s Court found that restoration was a realistic possibility and directed the Director-General to file a new care and permanency plan.
The court, in considering the plans for the child, will perform a dual function namely determining whether it can make a final care order approving the plan on the basis that permanency planning has been adequately and appropriately addressed and, if it has been, determining whether the plan should be approved in that it properly addresses the safety, welfare and well-being of the child or young person.
A paper by John Crawford Acting Magistrate and former Children’s Magistrate.
Discusses the meaning of “exceptional circumstances’ in relation to an order for costs in section 88 of the Children and Young Persons (Care and Protection) Act 1998. The fact that these parents had to pay their legal costs as a result of the Department's appeal is relevant to the consideration of exceptional circumstances.
A paper by Andrew Haesler SC.
Parens patriae jurisdiction – Parents dissatisfied with interim care order of Children’s Court – Order sought dismissing orders of the Children’s Court – Whether parens patriae jurisdiction should be enlivened only in exceptional circumstances – whether exceptional circumstances established – whether parents should pay costs of Department of Community Services and independent child’s representative.
The application of s 106A of the Children and Young Persons (Care and Protection) Act 1998 – examines "the circumstances that gave rise to the previous removal" in s 106A.
Sexual offences – child offender – jurisdiction of the Children’s Court – prosecution withdrawn – statutory effect – consequences of withdrawal – whether a certificate of acquittal can be given.
The term “person” in s 79(1)(a)(iii) means an individual or natural person in his/her personal capacity and does not empower the Court to make s 79 Orders allocating of persons such as a Principal Officer of/or a Designated Agency.
A baby with brain damage was placed in the long term parental responsibility of the Minister as the Court could not be satisfied that the baby’s twenty year old aunt would be able to sustain a placement in the long term.
When deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future.
08 May 2023
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